Standing Committee E

[Mr. Derek Conway in the Chair]

Human Fertilisation and Embryology (Deceased Fathers) Bill

Steve McCabe: I beg to move,
That, if proceedings on the Human Fertilisation and Embryology (Deceased Fathers) Bill are not completed at this day's sitting, the Committee do meet on Thursday 8th May at half-past Two o'clock.
 I stress that this is purely a precautionary measure. 
 Question put and agreed to.

Clause 1 - Certain deceased men to be registered as fathers

Steve McCabe: I beg to move amendment No. 1, in
clause 1, page 1, line 23, leave out 
 'within the period of 42 days beginning with' 
 and insert 
 'not later than the end of the period of 42 days from'.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 2, in
clause 1, page 2, line 31, leave out 
 'within the period of 42 days beginning with' 
 and insert 
 'not later than the end of the period of 42 days from'.
 No. 3, in 
clause 1, page 3, line 5, leave out 
 'within the period of 42 days beginning with' 
 and insert 
 'not later than the end of the period of 42 days from'.
 No. 4, in 
clause 1, page 3, line 33, leave out 
 'within the period of 42 days beginning with' 
 and insert 
 'not later than the end of the period of 42 days from'.
 No. 5, in 
clause 1, page 3, line 46 , leave out from 'above' to second 'be' in line 47 and insert 
 'as to the making of an election (which requires an election to be made either on or before the day on which the child was born or within the period of 42 or, as the case may be, 21 days from that day) shall nevertheless'.
 No. 6, in 
clause 1, page 3, line 48, leave out 'outside' and insert 'after the end of'.
 No. 7, in 
clause 1, page 4, line 2, leave out 'outside the required period' and insert 
 'after the end of the period mentioned in subsection (5F) above'.
 No. 8, in 
clause 3, page 5, line 11, leave out 'within' and insert 
 'not later than the end of'.
 No. 9, in 
clause 3, page 5, line 18, leave out 'within' and insert 
 'not later than the end of'.
 No. 10, in 
clause 3, page 5, line 25, leave out 'within' and insert 
 'not later than the end of'.
 No. 11, in 
clause 3, page 5, line 32, leave out from 'words' to end of line 33 and insert 
 'from ''(which requires'' to ''that day)'' there were substituted ''(which requires an election to be made not later than the end of a period of six months)''.'.
 No. 12, in 
schedule, page 7, line 18, leave out from 'not' to 'enter' in line 19.
 No. 13, in 
schedule, page 7, line 25, at end insert 
 'unless the condition in subsection (1A) below is satisfied. 
 (1A) The condition in this subsection is satisfied if— 
 (a) the mother requests the registrar to make such an entry in the register and produces the relevant documents; or 
 (b) in the case of the death or inability of the mother, the relevant documents are produced by some other person who is a qualified informant.'.
 No. 14, in 
schedule, page 7, line 38, leave out from '1990,' to end of line 40 and insert 
 'if the condition in section 10ZA(1A) of this Act is satisfied; or' ''.
 No. 15, in 
schedule, page 8, line 1, leave out paragraph 5 and insert— 
 '5 After section 10A(2)(b) of that Act (persons to sign register on reregistration), there shall be inserted— 
 ''(bb) in a case within paragraph (ff) of that subsection, the mother or (as the case may be) the qualified informant shall also sign the register;''.'.
 No. 16, in 
schedule, page 8, line 10, leave out from 'not' to 'enter' in line 11.
 No. 17, in 
schedule, page 8, line 17, at end insert 
 'unless the condition in subsection (1A) below is satisfied. 
 (1A) The condition in this subsection is satisfied if— 
 (a) the mother requests the registrar to make such an entry in the register and produces the relevant documents; or 
 (b) in the case of the death or inability of the mother, the relevant documents are produced by some other person who is a qualified informant.'.
 No. 18, in 
schedule, page 8, line 38, leave out from 'the' to end of line 39 and insert 
 'condition in paragraph (1A) is satisfied. 
 (1A) The condition in this paragraph is satisfied if— 
 (a) the mother requests the registrar to make such an entry in the register and produces the relevant documents; or 
 (b) in the case of the death or inability of the mother, the relevant documents are produced by some other person who is a qualified informant.'.
 No. 19, in 
schedule, page 9, line 9, leave out from '1990,' to end of line 11 and insert 
 'if the condition in Article 14A(1A) is satisfied.''.'.

Steve McCabe: The amendments make a relatively straightforward and minor change to the Bill. In order for a deceased man to be registered as the father of the child, the Bill requires a written election from the mother within 42 days from the day on which the child was born. The written election and the other relevant documents, including the man's written consent, must then be produced to the Registrar General to effect that registration. The standard period in law for registering a birth is 42 days, or 21 days in the case of Scotland.
 It was suggested that some flexibility should be built into the Bill to allow for situations in which the mother may be unable, either through her death or incapacity, to make the election and request for registration within 42 days of the birth. Thankfully, those circumstances are likely to be rare. Nevertheless, my amendments attempt to accommodate such a situation. They would give the woman the opportunity to put her wishes in writing at the earliest opportunity; for example, as soon as she knew that she was pregnant, as well as within 42 days following the birth. 
 The Bill already gives the Registrar General scope to extend the 42-day period after the birth where he or she is satisfied that there is a compelling reason to do so. The Bill also already allows extra time—up to six months—for registration or re-registration where children are born before the Bill comes into force. 
 The amendment follows a similar principle in allowing additional flexibility for the woman to record her wishes in case the worst should happen. Amendments Nos. 2, 3 and 4 make identical changes to those made by amendment No. 1, and amendments Nos. 5, 6 and 7 make consequential changes for the purposes of clarification.

Tim Boswell: May I first say, Mr. Conway, that it is pleasant to serve under your chairmanship? I think that this discussion should take place in the least possible time. Opposition Members do not wish to detain the Committee or to obstruct the Bill. The arguments were well rehearsed by, for this purpose, my hon. Friend—and certainly my neighbour—the Member for Northampton, South (Mr. Clarke), and there is wide support for the Bill. The amendments are sensible in including as much flexibility as is reasonably possible, and that is no problem providing that it is, in registrar's terms, ''secure''.
 I have only one further tiny point to make, on which the hon. Member for Birmingham, Hall Green (Mr. McCabe) may wish to reflect, if he is unable to respond to it today. I understand that the idea is to enable pre-birth expression of interest—the Minister nods. I suppose, however, that there could be—I am being not a lawyer but perhaps a barrack-room lawyer—a quibble as to whether that election was given during a pregnancy, because the onset of pregnancy is medically not easy to determine. There could be an evidential argument about whether someone had fallen pregnant on the Monday or the Wednesday, while the election had been made in the meantime. However, I do not think that any sensible registrar would make difficulties about that, and I hope that no other person would. The hon. Gentleman 
 may like to reflect on whether there is a potential difficulty in that area. That is my only reservation about the Bill, and I hope that it will proceed smoothly.

Evan Harris: May I take this opportunity, Mr. Conway, not only to welcome you to the Chair, but to applaud the hon. Member for Birmingham, Hall Green, who is promoting the Bill, for his tenacity thus far. I also pay tribute to the hon. Member for Northampton, South, who showed similar tenacity at the end of the previous Parliament and was defeated only by time.
 I am grateful to the hon. Member for Birmingham, Hall Green for clarifying the amendments in his note to the Committee, because this sort of legislation is difficult to interpret when one has not been steeped in it. I have no objection to the inclusion of the amendments, although, as I mentioned to the hon. Gentleman, there may need to be some further discussion about issues to do with clause 3.

Hazel Blears: I also welcome you to the Chair, Mr. Conway. I thank my hon. Friend the Member for Birmingham, Hall Green for his clear explanation of the reasons for the amendments and the effect that they would have. I agree that this is a minor but necessary change. It is right to introduce extra flexibility in the circumstances that he has in mind. However, I hope, as I am sure do other members of the Committee, that such tragic circumstances would occur extremely rarely. I believe that the Bill will be improved as a result of the amendments. They strike the right balance between the rights and interests of the different parties in such circumstances. I am therefore delighted to be able to support them.

Steve McCabe: I take note of the point made by the hon. Member for Daventry (Mr. Boswell). I cannot give him an instant answer but I will look into the matter.
 Amendment agreed to. 
 Amendments made: No. 2, in 
clause 1, page 2, line 31, leave out 
 'within the period of 42 days beginning with' 
 and insert 
 'not later than the end of the period of 42 days from'.
 No. 3, in 
clause 1, page 3, line 5, leave out 
 'within the period of 42 days beginning with' 
 and insert 
 'not later than the end of the period of 42 days from'.
 No. 4, in 
clause 1, page 3, line 33, leave out 
 'within the period of 42 days beginning with' 
 and insert 
 'not later than the end of the period of 42 days from'.
 No. 5, in 
clause 1, page 3, line 46 , leave out from 'above' to second 'be' in line 47 and insert 
 'as to the making of an election (which requires an election to be made either on or before the day on which the child was born or 
within the period of 42 or, as the case may be, 21 days from that day) shall nevertheless'.
 No. 6, in 
clause 1, page 3, line 48, leave out 'outside' and insert 'after the end of'.
 No. 7, in 
clause 1, page 4, line 2, leave out 'outside the required period' and insert 
 'after the end of the period mentioned in subsection (5F) above'.—[Mr. McCabe.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Evan Harris: I am grateful to you, Mr. Conway, for calling me to speak in the clause stand part debate. It gives me the opportunity to say how much I welcome the amendments that have been made to the Bill since the previous Bill was introduced in the previous Parliament, particularly the important provision in new subsection (5A)(d) and equivalent lines in new subsections (5B), (5C) and (5D), whereby the man must have consented in writing to the use of his sperm after his death and agreed to fertility treatment.
 I do not want to be misquoted on this but that was one area on which the McLean report was clear. It upheld the view that it is not unreasonable of the Human Fertilisation and Embryology Act 1990 to require expressed consent in writing for the removal of sperm of someone who is incapacitated. Therefore, the Bill should act prospectively only when that consent has been granted. We had lengthy debates on that question during discussion of the previous Bill, and I am not sure whether I won everyone over to that view because of the need to press on with the legislation before the guillotine. 
 I am pleased that that concession has been made. Since the case was first raised, the importance of consent has, if anything, taken on greater significance in the light of events in Bristol and elsewhere in the health service. There has been a misunderstanding of the Court of Appeal judgment in the case of Diane Blood. The Court of Appeal did not hold that the removal of sperm from Mr. Blood was lawful, because there was no written consent. The case related specifically to European law. It is vital that the requirement is maintained prospectively and that questions are raised about the application of the Bill retrospectively, particularly considering the question of taking sperm lawfully. 
 Clause 1 is important because prospective fathers and, in the case of donated eggs, mothers have the right of control not only for fertility but for paternity or maternity. They do not lose those rights when they become incapacitated and should not lose them in a post-mortem setting. The Bill is welcome, and I thank the hon. Member for Birmingham, Hall Green—and the Minister and her Department, because I suspect that they have a hand in these things—for including the provision in the Bill. 
 Question accordingly agreed to. 
 Clause 1, as amended, ordered to stand part of the Bill. 
 Clause 2 ordered to stand part of the Bill.

Clause 3 - Retrospective, transitional and transitory provision

Amendments made: No. 8, in 
clause 3, page 5, line 11, leave out 'within' and insert 
 'not later than the end of'.
 No. 9, in 
clause 3, page 5, line 18, leave out 'within' and insert 
 'not later than the end of'.
 No. 10, in 
clause 3, page 5, line 25, leave out 'within' and insert 
 'not later than the end of'.
 No. 11, in 
clause 3, page 5, line 32, leave out from 'words' to end of line 33 and insert 
 'from ''(which requires'' to ''that day)'' there were substituted ''(which requires an election to be made not later than the end of a period of six months)''.'.—[Mr. McCabe.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Evan Harris: I am grateful for being able to speak to the clause. I invite the hon. Member for Birmingham, Hall Green or the Minister to set out in relatively straightforward terms the impact of the clause, if any, in light of the recent court judgment, because it has been difficult to get hold of the written view of that.
 I hope that I can catch your eye again after that explanation, Mr. Conway, because it has been difficult to understand the extent to which the human rights findings in that case mean that the Bill is relevant, to how many people it might apply, and in what circumstances the retrospective measures will apply. 
 In other words, what are the circumstances surrounding conception? Are there specific, identified people, or is the Bill a catch-all? Does the Minister believe that the measure will have a once-and-for-all effect on certain retrospective cases, or will it, as many people fear, apply, quasi-retrospectively, to cases that emerge? If anything, those cases are likely to be more common, in spite of the Court of Appeal's view in the Blood case that they would never occur again. It is now obvious to doctors that they cannot do what was done in that case. Worldwide experience suggests that that may well happen again, whether inadvertently or not, and I should be grateful for an explanation in respect of those points and for a chance to question further the Minister and the hon. Member for Birmingham, Hall Green.

Hazel Blears: Clause 3 is designed to acknowledge the position of a defined group of people who have found themselves in the circumstances that we are discussing, perhaps as a result of a lack of clarity about the legal position that pertained before the Bill was introduced. Proposed new section 28(5A)(d) in clause 1 makes it clear that, in future, the man must consent in writing to the sperm and an embryo being used. The various
 paragraphs go through the scenarios that may be presented.
 Clause 3 acknowledges the existence of a group of people who have found themselves in extremely unfortunate circumstances. It provides symbolic recognition of the fact that they have not been able to put the name of the father on the birth certificate. 
 As I said on the amendments, it is a question of striking the right balance and making it clear that, in future, consent will be a pre-requisite for acknowledgement taking place. As the hon. Member for Oxford, West and Abingdon (Dr. Harris) said, it is right that consent has become much more central to all our concerns, particularly in the health service. The Bill makes that an express consideration. At the same time, the measure is designed to ensure that people who were perhaps in an unclear legal situation can now find themselves in a proper situation. 
 Clause 3 is retrospective, so it is unusual. It enables article 8 of the European convention on human rights, which relates to the right to a private and family life, to be complied with where there was found to be a clash between the Human Fertilisation and Embryology Act 1990 and human rights provisions. All existing children will be covered, as will all future children born before the Bill is passed in the circumstances that we are discussing. This is a real attempt to provide people with clarity. If the situation arises before the Bill is passed, the requirement for consent does not bite. If the situation arises after the Bill is passed, that requirement does bite.

Evan Harris: The scope of the judgment on the human rights issue is not clear. Let us say that, in a prospective case, there was no consent for removal of the sperm—that is, under common law, it was unlawfully removed. The provisions to which I referred earlier, proposed new section 28(5A)(d) and so on, require consent in writing. If that is not obtained in a future case, what is there to prevent a human rights action? If the judgment was clear that even where there was no consent, children had the right to registration, why would that aspect of the Bill not be outwith the Human Rights Act 1998?

Hazel Blears: We believe that the measure is a proportionate and appropriate response to the requirements of the Human Rights Act. Again, it is matter of striking the right balance. That is not to say that a court could not consider the point, but should the legislation be considered under the human rights umbrella, we believe that it would meet the requirements under article 8. Clearly, no one can pre-empt litigation and a judgment, but we believe that the Bill strikes the right balance: people can benefit from the human rights legislation, but the law is equally clear in relation to consent.

Evan Harris: I am grateful for that clear answer, which I understand and accept. My question relates to clause 3. Given that the law was clear in 1990—one can argue whether it is right, although I believe that the McLean report confirms that it was correct—why is it necessary to apply retrospective provisions to those cases where it cannot be shown that there was expressed consent?

Hazel Blears: The clause ensures that people can see their legal position clearly. It could be argued that if a court decided one way, the legislation would not be needed. However, I think that it is important to have clear scenarios in the Bill that let people know what their legal rights and responsibilities will be. It is right to set out the circumstances in clause 1 in which in future written express consent will be required, then to set out in clause 3 the circumstances in which the requirements in clause 1 will be disapplied. The whole thrust of the Bill is to say that express consent should be obtained in all circumstances. That is recommended in all the work that the Human Fertilisation and Embryology Authority undertakes. It is important to make that point. Without clause 3, there would be an infringement of the rights of existing children, such as Diane Blood's children. Clause 3 exists to enable the rights of children under the human rights convention to be acknowledged. There is a clear acknowledgment in the retrospective provisions in clause 3.

Evan Harris: I would be grateful if the Minister could further clarify how many children she believes are affected. If she has that information, can it be made available to us before the Bill passes through all its stages? I see the point that she is making. The fact that the Bill has been passed might be persuasive in future actions because it makes the point explicit. My understanding was that the need for expressed consent was in previous legislation, albeit in regulations. I need to check that.
 Without seeing the court judgment—I am not sure whether I have simply been unable to get it or whether it has been reserved and has not yet been produced—it is hard to judge whether what the Minister says is likely to be correct. I appreciate that she is sincere in what she says, but the question remains of whether the Bill should be applied retrospectively where there was not expressed consent, but not prospectively simply by virtue of further legislation making clear what I believe, and what the McLean report maintained, was already clear? 
 If I am not satisfied after looking at the legal judgment, perhaps we might revisit that narrow issue at a later stage. At this stage, I am content to see clause 3 stand part of the Bill. If the Minister can respond to my question about the numbers, I should be grateful.

Hazel Blears: I understand between 30 and 40 children are in this position. I can certainly clarify whether we have any more exact information for the hon. Gentleman.
 Question put and agreed to. 
 Clause 3, as amended, ordered to stand part of the Bill. 
 Clause 4 ordered to stand part of the Bill.

Schedule - Consequential amendments

Amendments made: No. 12, in 
schedule, page 7, line 18, leave out from 'not' to 'enter' in line 19.
 No. 13, in 
schedule, page 7, line 25, at end insert 
 'unless the condition in subsection (1A) below is satisfied. 
 (1A) The condition in this subsection is satisfied if— 
 (a) the mother requests the registrar to make such an entry in the register and produces the relevant documents; or 
 (b) in the case of the death or inability of the mother, the relevant documents are produced by some other person who is a qualified informant.'.
 No. 14, in 
schedule, page 7, line 38, leave out from '1990,' to end of line 40 and insert 
 'if the condition in section 10ZA(1A) of this Act is satisfied; or'''.
 No. 15, in 
schedule, page 8, line 1, leave out paragraph 5 and insert— 
 '5 After section 10A(2)(b) of that Act (persons to sign register on reregistration), there shall be inserted— 
 ''(bb) in a case within paragraph (ff) of that subsection, the mother or (as the case may be) the qualified informant shall also sign the register;''.'.
 No. 16, in 
schedule, page 8, line 10, leave out from 'not' to 'enter' in line 11. 
No. 17, in 
schedule, page 8, line 17, at end insert 
 'unless the condition in subsection (1A) below is satisfied. 
 (1A) The condition in this subsection is satisfied if— 
 (a) the mother requests the registrar to make such an entry in the register and produces the relevant documents; or 
 (b) in the case of the death or inability of the mother, the relevant documents are produced by some other person who is a qualified informant.'.
 No. 18, in 
schedule, page 8, line 38, leave out from 'the' to end of line 39 and insert 
 'condition in paragraph (1A) is satisfied. 
 (1A) The condition in this paragraph is satisfied if— 
 (a) the mother requests the registrar to make such an entry in the register and produces the relevant documents; or 
 (b) in the case of the death or inability of the mother, the relevant documents are produced by some other person who is a qualified informant.'.
 No. 19, in 
schedule, page 9, line 9, leave out from '1990,' to end of line 11 and insert 
 'if the condition in Article 14A(1A) is satisfied.''.'.—[Mr. McCabe.]
 Schedule, as amended, agreed to. 
 Bill, as amended, to be reported. 
 Committee rose at twenty minutes past Nine o'clock.